In the year and a half since I handed in the final draft ofUnlearning Liberty, an amazing number of developments have taken place on and off campus regarding the free speech rights of college students and faculty. While some of them have been positive, several have been deeply disturbing to those of us who care about the future of free speech. This afterword can only scratch the surface of the most important events, but three areas demand special attention: first, some significant legal wins, and one loss, for free speech on campus; second, an attempt by the federal government to redefine harassment so broadly as to place every speaker at risk; and third, troubling new evidence on the decline in respect for free speech.

Free SpeechonCampus Continues (Mostly)toWin in Court

In January 2013, Hayden Barnes secured another win in his six-year-long legal odyssey when a federal district court in Georgia ruled that Ronald Zaccari, former president of Valdosta State University, was personally liable to Hayden in the amount of $50,000 for his gross violation of Hayden’s due process rights. The Barnes case offers a promising new avenue for discouraging campus administrators from running roughshod over students’ free speech and due process rights. It seems likely that Valdosta State University (and, therefore, taxpayers) will foot the bill for Zaccari’s abuses, but this outcome should not be accepted without a fight by trustees, alumni, and citizens everywhere. If administrators understand that they risk personal financial harm by abusing student’s rights, perhaps they will not be so cavalier about doing it in the first place.

I am also happy to relate two major victories against the absurd campus practice of quarantining speech to tiny “free speech zones.” To the surprise of no one (except possibly the school’s general counsel), the University of Cincinnati’s ludicrous free speech zone policy—which limited free expression to a mere 0.1 percent of the entire 137-acre campus and required ten days’ prior approval for protests and petitions—was handily defeated in federal court in the summer of 2012. This is yet another example of an American public university deliberately choosing to spend taxpayer money to fight tooth and nail for the ability to put severe limits on students’ speech rights.

The sister case to this welcome defeat took place at Sinclair Community College, another Ohio school, located just forty-five miles from the University of Cincinnati. Sinclair tried to enforce an unwritten blanket ban on the holding of any signs during protests. When FIRE intervened after the policy was enforced against a pro-life group, the college’s president, Steven Lee Johnson, had the gall to invoke the September 11 attacks and the Virginia Tech shooting to justify the nonsensical ban. He told the Dayton Daily News that the ban on signs had “nothing to do with what was printed on those objects, but what those objects could be used for.” In March 2013, the school abandoned the policy in the face of a lawsuit, but the casualness with which some public officials will exploit historic tragedies to uphold even the most ludicrous and unrelated restrictions on student rights troubles me deeply.

Unfortunately, not all courts have reached the right decision in the last year and a half. In July 2013, a federal district court judge decided to dismiss the case of Joseph Corlett, the student who submitted the “Hot for Teacher” piece for his writing class after asking multiple times if he really could write anything he wanted and receiving repeated assurance that he could and encouragement to do so. The judge let his distaste for Corlett’s speech dictate his interpretation of the law, choosing to import a standard fromBethel School District v. Fraser, a 1986 case in which the Supreme Court ruled that high schools can punish students for lewd or vulgar speech. The Bethel opinion does not apply to college students, who have far greater expressive rights than those in high school, and is completely incompatible with the Supreme Court’s position on freedom of speech in the context of higher education. In 1973, in Papish v. Board of Curators of the University of Missouri et al., the Court explicitly ruled that college campuses may not limit speech “based on the conventions of decency alone.” Hopefully, judges in future cases won’t let their personal discomfort with what a student says interfere with their interpretation of the law.

The Federal Government Wildly Expands the Definition of “Harassment”

In October 2012, Alexander Myers, a foreign exchange student at the State University of New York at Oswego, was brought up on harassment charges after he emailed local hockey coaches and asked for their opinion of Oswego’s hockey coach as part of a class assignment. A rival coach found the email “offensive” because the student told recipients that they need not say only nice things about the Oswego coach. Apparently, the mere implication that one could say anything less than positive about this man was an affront; the rival coach’s complaint was enough to get the student suspended and kicked off campus. FIRE intervened and, with the help of an article on the website Gawker and widespread public ridicule, persuaded Oswego to change course.

The Oswego case is only the latest example of the flagrant abuse of harassment codes on college campuses to punish speech that administrators deem offensive. This tactic had become so common by 2003 that the Department of Education’s Office for Civil Rights (OCR) made a serious attempt to stop colleges from employing unconstitutional harassment codes to punish clearly protected speech. In a letter sent to virtually every college in the country, OCR explained that federal regulations did not and could not be used to justify codes that violated the First Amendment. OCR also made clear that federally compliant harassment policies must include a “reasonable person” standard, which is to say that in order to be considered harassment, the behavior in question must not only be offensive to the accuser, but also amount to conduct that a “reasonable person” would find offensive.

On May 9, 2013, however, the federal government performed a baffling about-face, from trying to limit the spread of unconstitutional speech codes to effectively mandating them at virtually every college in the country. Following a joint investigation of the University of Montana regarding that institution’s mishandling of sexual assault cases, the Department of Education and the Department of Justice joined together to expand the definition of sexual harassment to encompass any sex-related conduct or speech that could be labeled “unwelcome”—a wildly broad and vague standard. The feds proclaimed the findings letter and resolution agreement with the University of Montana to be a “blueprint” for colleges and universities across the country. In the process, they abandoned the requirement that harassment must be both objectively and subjectively offensive.

The May 9 findings letter further stated that universities may take “disciplinary action against the harasser” even “prior to the completion of the Title IX and Title IV investigation/resolution.” In other words, students can be punished before they are found guilty. The government had already reduced the standard of evidence needed to convict a student of harassment to the lowest possible level (see Chapter 6); now it opened the door to eliminating even this meager protection.

It’s hard to convey the atmosphere of shock and disbelief that pervaded the FIRE office when we read this new “blueprint” the day after it was issued. With a single letter, the federal government sought to overrule decades of case law declaring harassment-based campus speech codes unconstitutional. It is important to remember that the illiberal behavior that I describe in this book took place despite the government’s ongoing insistence that campuses could not use federal law to excuse the punishment of constitutionally protected speech. What is going to happen now that the federal government is requiring them to impose a speech code far worse than any of those that had been defeated in court over the previous three decades?

FIRE realized that fighting back against the Departments of Education and Justice would require the greatest public-education effort we had ever undertaken. We also knew that many facts that we took for granted were not widely understood by the general population. Foremost among them was that harassment has always been the rationale of choice for campus speech codes, going back to the 1980s, and that harassment policies never stay confined to sex. Rather, they quickly expand to issues of race, ethnicity, and religion, thereby placing virtually any controversial speech at risk. We also had to explain that the plain language of the new code threatens anything from discussions about divisive political topics to analyses of sexually provocative books like Lolita and Lady Chatterley’s Lover.Such concerns were well founded, since campus administrations had been applying equally absurd and outrageous speech restrictions for decades, even without the encouragement of the federal government. In addition, we needed to explain that the hidden engine behind campus overreaction to vaguely provocative speech is often financial, including a fear of liability and the threat of losing federal funding. Now that the federal government has mandated sweeping restrictions on speech, this fear could escalate into panic.

FIRE quickly started spreading the word through the media, and the response was dramatic. The new blueprint prompted hundreds of critical articles, including staff editorials condemning it in the Los Angeles Times, the Tampa Bay Times, and the Washington Times; a scathing column by George Will in the Washington Post; and several critical articles in the Chronicle of Higher Education and other outlets, including Newsday, theMiami Herald, the Atlantic, the Weekly Standard, the Huffington Post, Bloomberg, and Reason. Of course, the staff of FIRE contributed to this flood of criticism, including an article I wrote for the Wall Street Journal on May 16, 2013, which outlined the potentially devastating consequences of the blueprint. Opposition to the ridiculously broad new definition of harassment was fairly uniform across ideologies and party lines—that is, until Senator John McCain issued a press release condemning the new blueprint and the Department of Justice’s usurpation of legislative power over the nation’s colleges without following regulatory procedures. In sadly predictable culture-war fashion, McCain’s involvement prompted the ThinkProgress blog to declare that the opposition to the blueprint was essentially a pro-rape, right-wing conspiracy. I was disappointed to see that several online publications, including Wonkette and New York Magazine, repeated this narrative without investigating its accuracy.

Despite that minor dust-up, the coalition that FIRE assembled to battle the blueprint was remarkably broad. It included the Electronic Frontier Foundation, the National Coalition Against Censorship, the Rutherford Institute, Students for Liberty, the Student Press Law Center, the Woodhull Sexual Freedom Alliance, the American Council of Trustees and Alumni, and the Defending Dissent Foundation, among other organizations. In addition, many noted scholars joined the fight, including Donald Downs, battler of speech codes at the University of Wisconsin–Madison and director of the Wisconsin Center for the Study of Liberal Democracy; Nat Hentoff, former Village Voicecolumnist, jazz expert and revered free speech champion; KC Johnson, professor of history at Brooklyn College and co-author of Until Proven Innocent: Political Correctness and the Shameful Injustice of the Duke Lacrosse Rape Case; Wendy Kaminer, social critic and author of several books on law, liberty, feminism, religion, and popular culture; Michael McConnell, former federal judge and director of the Constitutional Law Center at Stanford Law School; Cary Nelson, professor of English at the University of Illinois at Urbana-Champaign and former president of the American Association of University Professors; Steven Pinker, professor of psychology at Harvard University and bestselling author; and Nadine Strossen, professor of law at New York Law School and former president of the American Civil Liberties Union.

In the face of this growing onslaught of criticism, the Office for Civil Rights of the Department of Education began awkwardly backpedaling, claiming that its original intention was simply to encourage the reporting of “unwelcome” speech. This characterization is impossible to square with the text of the May 9 letter, which calls for the elimination of harassment, requires mandatory reporting, demands that the University of Montana maintain indefinitely a file of all allegations against students and faculty (no matter how frivolous), and mandates investigation of all such claims. Even if OCR’s claim were true, however, it is highly dubious that the federal government has the power to officially stigmatize constitutionally protected speech it believes may lead to some social harm. The few existing supporters of the federal blueprint would likely understand the threat to the First Amendment if the federal government attempted to mandate the reporting of protected speech that was “unpatriotic” or “impious.”

In July and August 2013, FIRE received additional evidence that the Departments of Justice and Education were retreating somewhat from their new definition of harassment. In a July 27 letter to FIRE, OCR wrestled with the free speech implications of its May 9 letter, focusing on the argument that speech still had to be “sufficiently serious to deny or limit a student’s ability to participate in or benefit from the educational program” in order to be punished. This is a far cry from the Supreme Court’s speech-protective Davis standard, which I discuss extensively in the book, but it’s a start. In August, when the University of Montana released its new harassment standards, reportedly written with the advice of the Departments of Education and Justice, it shied away from the more extreme language of the May 9 letter. But until OCR retracts and replaces its May 9 letter, campuses around the country will use it to justify (or excuse) the passage of glaringly unconstitutional harassment codes. This fight is far from over.

Bad AttitudesaboutFree Speech on Campus Get Worse

When I talk to adults over the age of forty who do not work in an academic setting, I find that the term “free speech” has a special kind of moral force and relevance for them regardless of their political background. When I talk to professors and administrators of similar age on campus, however, they often focus on how the First Amendment allows the dissemination of ideas they don’t like, as opposed to the thousands of innovations and positive social developments it has made possible. A striking example of this position appeared in the wake of the attack on the American consulate in Benghazi, Libya, in September 2012. In the days immediately following the tragedy, many—including the Obama administration—claimed that the assault was a direct response to a controversial YouTube video. Some academics, such as Professors Eric Posner and Anthea Butler, seized this opportunity to proclaim publicly that Americans value free speech too highly. Posner, a professor of law at the University of Chicago and son of the famous jurist Richard Posner, went so far as to label America’s reluctance to restrict free speech to accommodate foreign policy interests a “bizarre principle.”

Unfortunately, it appears that the attitudes toward free speech exhibited by the nonacademic, over-forty crowd are giving way to those held by college administrators and professors like Posner and Butler. During the summer of 2013, the First Amendment Center released its annual study on national attitudes about freedom of speech, and it showed disturbing results. A record 34 percent of Americans stated that the First Amendment “goes too far” in protecting individual rights. Worst of all, a staggering 47 percent of those polled between the ages of eighteen and thirty held the same view.

The First Amendment Center noted that these results might be skewed because the surveys were completed in the wake of the April 2013 Boston Marathon bombing, which may have inspired a sadly predictable backlash against civil liberties. Yet this only underscores the impact that “blame free speech first” thinking (exhibited by Professors Posner and Butler) can have on popular opinion. Notably, as the ages of those polled in the study increased, the hostility toward free speech decreased; only 23 percent over the age of sixty thought the First Amendment “goes too far” in protecting speech. The contrast with the eighteen-to-thirty demographic may indicate that our younger generations are absorbing the negative perspectives on free speech that I have seen so often among college professors and, especially, administrators. The phenomenon shouldn’t surprise readers of this book, who know that the lessons learned on campus do not stay on campus, but ultimately bleed into the larger society. If we want freedom of speech to endure, we have to teach each generation about the almost endless ways in which they benefit from the open exchange of ideas.

Looking Ahead

I find myself ever more curious about some of the issues I’ve only touched upon in this book: how our society tolerates and even encourages selective relativism, selective uptightness, and selective claims of offense, even when they are deployed in a transparently tactical way to score points in our seemingly endless culture wars. I am also determined to continue investigating how negative attitudes about open and free-flowing discussion on campus may encourage college-educated Americans to form self-affirming cliques upon leaving campus, thereby thickening the walls of their echo chambers. I am always on the lookout for the intrusion of rhetorical habits that are intended to short-circuit rather than encourage debate and discussion in both the popular media and the political arena. And I continue to seek ways not only to promote the philosophical benefits of free speech and open inquiry, but also to emphasize the absolute necessity and pragmatic value of maintaining such freedom in a diverse and increasingly complex world, both on campus and off.

My experiences have taught me that there are no silver bullets; no easy paths to a college system that teaches the habits of free people and free minds. One crucial step, however, is the development of rigorous, affordable, and effective alternatives to our bloated and ludicrously expensive higher-education model. While I love many aspects of our great institutions of higher learning, it may take the shock of the success of competing models to convince traditional colleges that they will quickly lose students to campuses where they can speak freely and innovate without fear.

On a cultural level, one of the most effective tools for promoting the practice and benefits of free expression is to cultivate among students and the larger population a simple belief: it is the duty of educated people to seek out debate with those who disagree with them. The idea that you can identify true thinkers by how well they understand the arguments of their opponents appears to have gone out of fashion. Societies that welcome serious discussion, devil’s advocacy, and thought experimentation are more dynamic, exciting, and innovative. As a nation, we need to remember that practices like censorship merely encourage people to stay within their echo chambers and produce narrower, less creative thinkers—and that the rough-and-tumble of meaty deliberation is not only edifying, but even quite fun once you get used to it. We must remember the simple yet essential value of knowing people as they are and understanding what they actually believe, both good and bad. To pretend that we can improve any social problem by simply demanding that people not speak their minds is foolish, and will only lead to an increasingly distorted perception of how the world works.

Too many of our future leaders are educated in an atmosphere that actively practices selective censorship and demonstrates little tolerance for free and open discourse. If our ultimate goal is to live in an open, bold, and free society in which people are unafraid to play with ideas—and it should be, for the health of our democracy—we must ensure that the values of free speech and open inquiry are preserved on our nation’s campuses. It will be a long battle, but it is one that we cannot afford to lose. And so the fight goes on.